PP (applicant) v The Director of Public Prosecutions (respondent).
Judicial Review - Criminal Law - Right of accused to trial with reasonable expedition - Lapse of time - Actual prejudice - Blame- worthy delay on the part of the prosecuting authorities - Bunreacht na hEireann, Article 38.1.
The High Court (before Mr Justice Geoghegan); judgment delivered 5 October 1999.
WHERE there is blameworthy delay on the part of prosecuting authorities the Court will not allow the case to proceed against the accused and additional actual prejudice need not be proved.
Mr Justice Geoghegan so held in granting the relief by way of judicial review.
John Rogers SC and Tara Burns BL for the applicant; Aindrias O Caoimh SC and Adrienne Egan BL for the respondent.
Mr Justice Geoghegan set out the facts of the case stating that this was an application for an order of prohibition, prohibiting the respondent from proceeding with a prosecution of the applicant on charges of gross indecency and indecent assault alleged to have occurred in 1977. Strictly, an order of prohibition can be made only against inferior courts and tribunals and accordingly Mr Justice Geoghegan treated the applicant as effectively seeking an injunction against the Director of Public Prosecutions.
The applicant sought to prevent the trial going ahead on the basis that too long a time had elapsed since the date of the alleged offences. Alternatively, it was argued that even if the long lapse of time was not sufficient in itself to prevent the prosecutions going ahead then the applicant was in a position to demonstrate that he would suffer actual prejudice in the conduct of his defence.
As a further alternative, he argued that there was unjustifiable delay by the prosecuting authorities which should entitle him to have the prosecution discontinued. Mr Justice Geoghegan noted that the legal principles applicable in relation to the first two of these arguments were to be found in two Supreme Court cases, B v DPP [1997] 3 IR 140 and C v DPP unreported 28 May 1998.
The male complainant was a teenager at the relevant time and was employed by the applicant. He did not report the alleged offences until 1995. Mr Justice Geoghegan noted that since Hogan v The President of the Circuit Court [1994] 2 IR 513, the way the courts viewed delay in criminal proceedings could often be different in the case of charges by young children in regard to assaults on them at an early age which are not brought to the attention of the authorities by such children until very many years after they occur. In C v DPP the Supreme Court held that delay may also be more readily explicable in cases where, not merely is the person concerned significantly older than the complainant at the time of the alleged offences, but occupies a particular role in relation to him or her. However Mr Justice Geoghegan was satisfied that dominance was not essential for a court to take a view that the delay was reasonable. Mr Justice Geoghegan went on to state that, having read a psychological assessment on the complainant and, having seen him in the witness box, he thought that, if the offences occurred, the cause of his delayed reporting was some kind of inhibition arising out of shame and disgust. If the facts were true, the delay in reporting to the Gardai was substantially contributed to by the applicant and he could not set up that delay of itself and by itself as a ground for resisting a trial.
Mr Justice Geoghegan went on to consider whether there was a real and actual prejudice of a kind which would prevent the applicant from having a fair trial. Mr Justice Geoghegan referred to an affidavit of the applicant sworn on 26 April 1999, in which an alibi defence based on dates and records that were no longer available was asserted. Mr Justice Geoghegan was of the view that every time an applicant asserted such a defence he should not be entitled to have a prosecution discontinued: it would depend on the particular facts and how fundamental the evidence was and whether at the end of the day he could get a fair trial. Furthermore it was only in the affidavit of April 1999 that the applicant first asserted with certainty his alibi defence and he gave no evidence of any efforts to establish some supportive evidence of this. Mr Justice Geoghegan went on to say that in the case of a sexual offence committed many years earlier there could be confusion about dates. It was the actual incident rather than the precise date which was of importance; neither was there any question of evidence having been wittingly or unwittingly destroyed by the Garda or prosecution authorities. The judge stated that the absence of records, while it might or might not be unhelpful to the applicant, did not lead to the conclusion that he could not get a fair trial.
In relation to the question of unjustifiable delay by the prosecuting authorities Mr Justice Geoghegan noted that in C v DPP Mr Justice Keane, firstly, had observed that the High Court in The State (Healy) v Donoghue [1976] IR 325 had construed Article 38.1 of the Constitution as recognising the right of an accused person to a trial with reasonable expedition, which view was upheld by the Supreme Court in The State (O'Connell) v Fawsitt [1986] IR 362), and secondly, that in cases of unreasonable delay the paramount concern of the court would be whether it had been established that there was a real and serious risk of an unfair trial. Mr Justice Geoghegan said that Mr Justice Keane had impliedly acknowledged that different principles might apply to blameworthy delay on the part of the prosecuting authorities.
Mr Justice Geoghegan found that there had been blameworthy delay on the part of the prosecuting authorities (which term covered both the DPP and the Garda Siochana) in this case. Mr Justice Geoghegan went on to say that in this particular case the office of the DPP had acted impeccably and had dealt with the case with commendable speed, but that the same could not be said of the Garda Siochana who appeared to have conducted the investigation in a lackadaisical and slovenly fashion. There was a failure on the part of the Garda authorities as distinct from individual members of the force properly to follow up possible witnesses and the overall delay was wholly unacceptable despite the excuses made.
Mr Justice Geoghegan went on to hold as there had been blameworthy delay on the part of the prosecuting authorities the case should not be allowed to proceed and additional actual prejudice need not be proved. Mr Justice Geoghegan granted relief by way of judicial review in the form of an injunction against the DPP from further proceedings with these charges.
Solicitors: Malone & Martin (Trim) for the applicant; Chief State Solicitor for the respondent.
